FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 3, 2017

_________________________________
Elisabeth A. Shumaker
Clerk of Court
ARTHUR J. LOMAX,

Petitioner - Appellant,

v. No. 17-1016
(D.C. No. 1:16-CV-02833-LTB)
RICK RAEMISCH; WARDEN OWENS; (D. Colo.)
CYNTHIA H. COFFMAN, Attorney
General of the State of Colorado,

Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*

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Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.

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Arthur J. Lomax, a Colorado prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district courts dismissal of his 28 U.S.C. 2254

habeas application for lack of jurisdiction. We deny a COA and dismiss this matter.

After being convicted of sexual assault and sentenced to six years to life,

Mr. Lomax unsuccessfully pursued relief under 2254. See Lomax v. Davis,

484 F. Appx 206, 209 (10th Cir. 2012) (denying a COA). In 2016, he filed another

2254 application, making claims that his bond was too high, he was denied a

preliminary hearing, his counsel was ineffective, he was denied his rights to access and to

*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
confront the evidence presented against him, and his appeal was unduly delayed. Noting

Mr. Lomaxs earlier 2254 proceeding, the district court concluded that the 2016

application was an unauthorized second or successive 2254 application. It therefore

dismissed the application for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam). Mr. Lomax now seeks to appeal.

To appeal, Mr. Lomax must obtain a COA. See 28 U.S.C. 2253(c)(1)(A).

Where, as here, a district court has dismissed a filing on procedural grounds, for a COA

the movant must show both that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Before this court, Mr. Lomax fails to address the grounds for the district courts

dismissalthat the application was an unauthorized second or successive 2254

application that the district court lacked jurisdiction to consider. Instead, he focuses on

the merits of his claims. We do not consider the merits, however, because no reasonable

jurist could debate the district courts procedural decision. Mr. Lomaxs first 2254

application was denied as untimely, see Lomax, 484 F. Appx at 207, 209, which counts

as a merits decision, see In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam).

Therefore, he must obtain this courts authorization before filing another 2254

application. See 28 U.S.C. 2244(b)(3); Rains, 659 F.3d at 1275. And because he did

not obtain such authorization, the district court lacked jurisdiction to consider the

application. See Cline, 531 F.3d at 1251.

2
 The motion for leave to proceed on appeal without prepayment of costs or fees is

granted. But only prepayment of fees is waived, not the fees themselves. 28 U.S.C.

1915(a)(1), (b). A COA is denied and this matter is dismissed.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk